In Parliament, Shashi Tharoor’s valiant fight to change section 377

Shashi Tharoor tried to slip in a change through an amendment to the government’s bill to repeal 104 old laws, but Lok Sabha rejected it in winter session.

New Delhi: The Supreme Court is looking to revisit its ruling on criminalising homosexuality under Section 377 of the Indian Penal Code, but Parliament continues to turn a blind eye, despite an opportunity in the just-concluded winter session.

The chance came in the Lok Sabha when Congress MP Shashi Tharoor tried to slip in a change in Section 377 through an amendment to the government’s bill to repeal 104 old laws.

This was not Tharoor first crack at amending Section 377. He had earlier moved a private member’s bill to do away with the entire section, but that was defeated on the floor of the House, with his own party members unwilling to stand by him.

Yet, Tharoor jumped at the opportunity in the last session and moved an amendment, which essentially qualified the criminalisation part of Section 377 to ‘non-consensual sex’.

Instead of the words “Penetration is sufficient to constitute”, Tharoor proposed the words: “Non-consensual penetration shall constitute.” The amendment was, however, not taken up for debate.

In other words, this change, if considered, would punish homosexuality only if it was proven as rape.

The amendment was moved at the start of the session on 18 December to an omnibus government bill to repeal 104 redundant laws and bring minor changes in a few other legislations. Tharoor made use of the opportunity to introduce this change.

He found some support from Biju Janata Dal member Pinaki Mishra on Section 377. However, Union Law Minister Ravi Shankar Prasad responded by saying it was still a “debatable question”.

Tharoor had earlier moved two private member bills in 2015 and again in 2016. Both the bills were voted out in the Lok Sabha. His second bill only found 14 votes in favour. In fact, his second bill came on the heels of the government’s introduction of Transgender Rights Bill.

After the bill was voted out, Tharoor wrote that “hypocrisy and bigotry” had triumphed over his efforts.

He expressed his disappointment that Parliament even refused to entertain debate, and that the BJP used its brute majority to defeat his motion without even a discussion.

Tharoor, who has been outspoken on the rights of LGBTQ people, had also suggested that Kerala must take the lead to amend the Indian Penal Code to do away with the Victorian law.

The apex court on Monday once again said it would revisit its 2013 ruling that upheld the 1860 law that criminalises consensual intercourse between same-sex adults.